Name of Excellence: The German Succession Law as Applicable Law on Successions Concerning Immovable Property in Bulgaria
Author: Prof. Ekaterina Mateeva, Dr. Habil., Department of Civil Law Science
Research domain: Succession Law; Comparative Succession Law; International Private Succession Law; Substantive Law of the European Union
| Ekaterina Mateeva is a Professor of Civil Law and Family Law at the Faculty of Law, Dr. Habil. Head of the Department of Civil Law Science. She graduated as LL.M. with Highest Honours from the Faculty of Law, Sofi a University “St. Kliment Ohridski” (1984). Professor (2009). Dr. Habil (2012). Specializations: UK (1996); Germany (1996-1998); Greece (1997); The Netherlands (2001); Belgium and France (2007-2008). Foreign languages: German, English, Russian. Consulting Activity: Member of the Advisory Council on legislation to the President of the National Assembly (2007-2009); Member of the Legal Council to the President (since 2011). | |
|
Prof. Ekaterina Mateeva, Dr. Habil. |
This unique legal research is based on an expert opinion, written and presented by the author after a request of the Bulgarian court on the occasion of a partition case concerning immovable property in Bulgaria, where the deceased owner (legator, testator) who was a German citizen, had chosen the succession of his property as a whole to be governed by the German law. It is worth mentioning that the provisions of Art. 89, paragraph 3 and 4 of the Code of Private International Law (CPIL) authorize the testator to choose the succession of his property as a whole to be governed by the law of the state which he was citizen of at the moment of his death (‘lex patriae’ instead of ‘lex rei sitae’). The conditions for the validity of the choice of applicable law and its cancellation shall be governed by the chosen law, i.e. German law. The choice of applicable law and its cancellation shall be done in the form of a testament disposition. In such type of cases Bulgarian court or another justice body is obliged to determine ex offi cio the content of the foreign (German) applicable law.
The present research offers to Bulgarian courts a reliable source of information on various specifi cs of German succession law, which differs from Bulgarian succession law in many aspects. Unlike Bulgarian law the German Civil code (BGB) permits both the contract of inheritance between living persons (Еrbvertrag) and the joint and mutual will between spouses (gemeinschaftliche und wechselbezügliche Testamente), as well as the waiver of the right to succeed or to a compulsory portion during the lifetime of the testator, the so-called ‘Vorund Nacherbfolge’ and the disinheritance through a negative testament. This research assists Bulgarian courts when determining of the legal force of contractually binding testamentary dispositions under German law.
Taking into consideration the rapid increase of cross-border succession matters in the EU during the last decades the practical importance of this research could be understood in the light of Art. 44, paragraph 1 CPIL, which provides foreign applicable law to be interpreted and applied as it is being interpreted and applied in the state that created it. Failure to apply foreign law, as well as its incorrect interpretation and application, shall be a ground for appeal.